Porter v. California Department of Corrections, 383 F.3d 1018 (9th Cir 2004)

In June 1995, Lawana Porter began work as a correctional officer for the California Department of Corrections (CDC).  She alleged that during the first few years of her employment, two male co-workers, Terry Wheeler and Pete DeSantis, sexually harassed her via offensive comments and conduct.  Porter reported Wheeler's conduct to the CDC, and the allegations were investigated.  In early 1996, Wheeler was told he must stop any behavior toward Porter “of a personal nature” and attend a sexual harassment training class.  However, Porter continued to have conflicts with Wheeler. During the investigation, Porter asked DeSantis for help.  DeSantis was president of the correctional officers union.  However, DeSantis then allegedly made harassing comments to her as well.  Porter did not complain to CDC about DeSantis. 

In February 1996, DeSantis was promoted to sergeant.  In 1998, Porter advised him that she wanted to switch shifts.  Although there were openings on other shifts, he would not let her switch.  He also refused to give her the vacation days she wanted.  Porter alleged that she was also denied transfers three times in 1998 because of DeSantis.  A lieutenant who had supported Porter’s transfer reported the situation to the  associate warden, Margene Ford, and to the equal employment opportunity (EEO) coordinator.  In late 1998, an investigation began.  According to Porter, Ford became angry with her and told her the situation would get tougher for her. Porter then went on a medical leave that lasted nearly two years.   During her leave, the union president told her to stay away from CDC because she was a liability.  She received notices for missing classes and being absent without approval.  She filed an EEOC discrimination charge and then a federal court lawsuit.  In September 2000, Porter returned to work.  She alleges that several correctional officers gave her a difficult time on several occasions. 

In her lawsuit, Porter claimed she was subjected to sexual harassment, discrimination, and retaliation because she had rejected Wheeler's and DeSantis's advances in 1995 and 1996.  The trial court dismissed all Porter’s claims, but the Ninth Circuit reversed. 

The trial court held that Porter's discrimination claim failed because she did not file her EEOC charge within 300 days of the last alleged sexually harassing act.  Porter filed her charge in April 1999, and the claims of a sexually hostile environment were from 1995 and 1996.  Because her later claims were entirely different from the earlier claims of sexual harassment, the trial court found no "continuing violation" that would make the earlier claims timely.  The Ninth Circuit reversed, holding that the third transfer denial in 1998 took place within the 300 days and supported a sexual harassment claim.  The Ninth Circuit reasoned that DeSantis denied Porter the transfer in 1998 to punish her for having rejected his and Wheeler's advances in 1995 and 1996.  The Ninth Circuit then looked at the other allegations (e.g., denying her shift changes and vacation requests and threatening disciplinary action while she was on leave) all involved the “same type of sexist activity,” since it was “intimidating or demeaning the value of female employees who do not submit to demands for sexual favors.” 

The trial court held that the retaliation claim failed because Porter could not show a causal link between her rejecting sexual advances in 1995 and 1996 and the actions she alleged were in retaliation for her rejecting those advances.  The trial court concluded that far too much time had passed between the earlier events and the alleged retaliation to establish the requisite causal link.  The Ninth Circuit reversed on this issue as well, holding that the gap of time could be explained by the fact that DeSantis did not have the ability to retaliate until 1998, when he took on certain personnel responsibilities and could influence Porter's ability to work on certain shifts. 

Based on the Ninth Circuit's holding, it will be easier in certain circumstances for plaintiffs to tie together allegations from many years back into one continuing violation and thus defeat a limitations defense.  The holding also indicates it will also be easier in certain circumstances for plaintiffs to establish a causal link even when there is  several year gap between the alleged protected activity and the subsequent alleged retaliatory event. 

Lytle v. Carl, 382 F.3d 978 (9th Cir. 2004)

Trudi Lytle teaches at an elementary school in Nevada .  In 1992, she wrote to several state senators to oppose a new school program.  She was then told she was being transferred to a different school.  When she refused to transfer, she was terminated. Lytle sued the school district, claiming she was fired in retaliation for having written her letter and thus exercising her First Amendment right to free speech.  A jury agreed with her, awarding $135,000 in damages, and the court reinstated her at her former school.

Shortly thereafter, Lytle felt she was being retaliated against for having successfully sued the school district.  Specifically, a school district administrator asked the school to provide him with all disciplinary actions and related documents regarding her, and there were a series of disciplinary issues which were carefully documented in her file.  Lytle filed suit again, this time alleging that the school district was retaliating against her because of her prior lawsuit.  She won again, and the Ninth Circuit affirmed, holding that Lytle present sufficient evidence of unwarranted discipline and an effort to harass and humiliate to support the jury’s verdict.  This time, Lytle was awarded $75,000 in damages and $239,268 (reduced from $399,865 by the court) for attorney's fees. 

It may be that the school district meant well and was being careful in how it treated Lytle.  That is, perhaps the district wanted to stay advised of any disciplinary issues and the school wanted to document everything to ensure that any discipline was fully appropriate and not retaliatory.  The perception created, however, was that Lytle was being singled out and targeted for unlawful retaliation for having filed the prior lawsuit.